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Michael Nowlan, BBA, JDImmigration Law Attorney313.965.8666 | [email protected]
Clark Hill PLC is one of the 200 largest law firms in thenation, with 12 offices in the U.S. The Immigration PracticeGroup handles client cases nationally, with offices in Detroitand Washington DC, and over 150 years of combinedimmigration law experience.
BIOGRAPHY
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I-9 basics and the I-9 Form
Who can you hire?
Completing the I-9 because not just non-immigrants
Reverification, corrections, and agents
E-Verify
Electronic storage of I-9s
Best practices
Violations and penalties – and updates
Business visitors – US, Mexico and Canada
DISCUSSION TOPICS
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The PowerPoint is done so it can be a resource
Ask questions – better if interactive
Share your best practices
PRELIMINARY COMMENTS
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I-9s are required for every employee
Employers must have one for all employees hired since November 7, 1986
Current two page form: http://www.uscis.gov/sites/default/files/files/form/i-9.pdf
Employee completes Section 1 on or before the first day of hire
Employer has three business days, after the day of hire, to complete Section 2and examine original documents (four day rule)
Employer, or its agent, reviews original documents and completes Section 2
No expired documents
Must not hire persons who lack valid work authorization – actual & constructiveknowledge
Cannot use a subcontractor relationship (staffing company or independentcontractor) to hire someone you have reason to believe is not work authorized
MI ICE feels that once a notice is served, cannot correct the I-9s
I-9 BASICS
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70+ pages for a two page form
A FAIRLY COMPLEX LITTLE FORM
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A few notes on the two page form
Employee email ID and phone number are optional
Form states “the instructions must be available during completion ofthis form”
M-274 Form I-9 Manual (http://www.uscis.gov/files/form/m-274.pdf)
– If you learn of a legal change of name at a time, other than during a rehireor reverification, USCIS recommends that you update Form I-9
– You should take steps to be reasonably assured of the employee’s identity,and may ask the employee for the reason
– In cases where an employee has worked for you using a false identity butis currently work authorized, the I-9 rules do not require termination (CAlaw)
– But – different names on the docs presented and what is on the I-9 (liketypos) are OK, as long as you attach a memo and believe the employee
I-9 FORM
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Almost always OK to hire these people:
– US citizens and resident aliens (LPR)
– Refugees or Asylees
– EAD cards (J-2, F-1, L-2, spouse of E visa, green card pending, etc.)
All of these require employer sponsorship:
– H-1B, TN
– L-1 or any E Visa
– J-1 (sometimes can be a “free agent” but not common)
– O-1
Can never hire these people without other proof (EAD card, etc.):
– Social security number says not valid without INS or DHS authorization
– B-1/B-2
– O-3, H-4, TD,
– Less common - - A, G, I, K, L-1, N, P, Q, R, S, T, U, V
WHO CAN YOU HIRE?
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Employer reviews new hires’ original documents to ensure they “reasonablyappear on their face to be genuine and they relate to the person presentingthem”
Must not overdocument or discriminate during the I-9 process
H-1B, L-1, E Visa – must present passport and I-94 card
F-1 OPT – must present EAD card
F-1 CPT – must present passport, I-94 and SEVIS I-20 form
When sponsoring employees for work authorization, it is OK to ask aboutcurrent immigration status
I-9 DOCUMENTATION – IS IT GENUINE? WHAT TO ACCEPT?
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Every new hire must fill out Section 1 himself/herself – hand written is OK
Email, telephone, and SSN are optional
Any changes to Section 1 MUST BE DONE BY THE EMPLOYEE
Common errors include date of birth matching today’s date
“N/A” is preferred in any open boxes
FILLING OUT THE I-9 – SECTION 1
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Employee selects his/her status, but HR can provide guidance – “green card holders”are not Aliens Authorized to Work, for example
Corrections on Section 1 – no “white out,” and changes should be crossed out with oneline by the employee, and then initialed and dated by the employee
Make sure lawful permanent residents (“green card holders”) include either their ANumber, or the USCIS number on their status
Aliens authorized to work have the most information to include, and know the leastabout our US forms and titles, so their paperwork should be double checked as well
FILLING OUT THE I-9 – SECTION 1 CONT.
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Employees must sign and date the I-9
Watch out for employees including their date of birth in the date section nextto their signature, which is an error
If you assist the employee in preparing the I-9, like typing up the form withtheir information, or writing on the form because they have a disability, besure to complete the translator section
ICE Officers looks for handwriting differences between Sections 1 and 2
FILLING OUT THE I-9 – SECTION 1 CONT.
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Filling out Section 2 for US citizens and LPRs is pretty straight forward
Look for differences in documents and status selected by the employee – e.g. theUS citizen should not be providing a copy of a LPR card
Let the employee select what they want to use – List A OR List B and List Cdocuments
If presented with many different documents by the employee, be sure not to fill outmore than List A, or B and C
Can copy and attach only the documents used to complete the I-9, not all docsreceived
A picture ID which says it is not valid for identification purposes?
FILLING OUT THE I-9 – SECTION 2
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The most mistakes on Section 2 of I-9s are made by HR professionals whenworking with aliens authorized to work, because the documents are uncommon
The next few slides will provide clear guidance on how to complete the I-9s fordifferent types of aliens authorized to work
But remember, there are persons who are aliens authorized to work, but who are“protected workers,” (just like US citizens and LPRs) and so these persons areconsidered US workers, and employers need to avoid asking for specificdocuments when completing I-9s for these workers
Asylees and refugees are a very common example of aliens authorized to work,who do not require employer sponsorship
Asylees and refugees may have an EAD card or a driver’s license and normalSSN
HR must review each time a new employee uses an SSN for a List C documents,to ensure it does not say “NOT VALID WITHOUT INS AUTHORIZATION,” or thatis does not say ‘NOT VALID WITHOUT DHS AUTHORIZATION”
Foreign workers who have a company sponsored work status can be helped &told what to provide for the I-9, as the worker only has one form of proof
Be sure to track work authorization expiration date and reverify prior to expiration
I-9S FOR ALIENS AUTHORIZED TO WORK
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F-1 CPT (Curricular Practical Training)workers are foreign national students whoare allowed to work for a specific companyfor a semester
They pay the school for enrollment duringthe semester, but are also paid by the USemployer
The student must have a valid passportand I-94 card
Most importantly, Form I-20 must listduration of the CPT employment andinclude your company name on the lastpage of the I-20
Watch for hour per week limitations, trackexpiration date
See the example to the left
FILLING OUT THE I-9 – F-1 CPT STUDENTS
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F-1 OPT (Optional Pract.) workers are foreignnational students who are allowed to work for anyemployer, but can only work for the duration of theirEAD card
They could be enrolled and have a EAD for just ashort time (like the summer), or may have an EADfor a year or more – track the exp date
Generally, employment on an EAD ends when thecurrent EAD expires – as there is no workauthorization allowed while an extension is pending
F-1 students who completed a degree in a STEMfield can apply for an additional 17 months oremployment, before the one year EAD expires, butonly if they work for an E-Verify employer
STEM OPT EAD employees can work while theextension is pending – a rare exception
FILLING OUT THE I-9 – F-1 OPT STUDENTS
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All other EAD workers will present an EAD that isvalid until a certain date – track exp date
These could be L-2, E-1 E-2 or E-3 visa holders whoare spouses of the main sponsored worker, orpersons going through the green card process
These workers must be reverified on or before theEAD expires
The worker could bring in different documents whenbeing reverified, like an unrestricted SSN card
Unrestricted SSN cards are allowed forreverification, even without another identifydocument, because the first identity document wasalready provided (the 1st EAD card)
Generally, employment on an EAD ends when thecurrent EAD expires – as there is no workauthorization allowed while an extension is pending
FILLING OUT THE I-9 – ALL OTHER EAD WORKERS
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H-1B, TN, L-1 and E-1/E-2/E-3 workers are employersponsored
Generally, the status must be approved before the personcan work for the sponsor – no TN or L-1 work authorizationwhile a change of employer application is pending
H-1Bs can work when new application filed – “H-1Bportability.” The Fed Ex delivery confirmation is enough –employers do not have to wait for the I-797 receipt, but it ispreferred when time permits, and write it on I-9
Only the foreign passport & I-94 card are needed for the I-9
Issuing authority can be US CBP (entering the US for thefirst time with a visa) or USCIS with a COS or EOS
Do not need to update the I-9 each time the employeereceives a new I-94 card
But watch passport expirations for shortened I-94 cards
Online CBP I-94 – https://i94.cbp.dhs.gov/I94/request.html
FILLING OUT THE I-9 – E-1, E-2, E-3, H-1B, TN OR L-1WORKERS
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Under 8 CFR 274a.12(b)(20), persons who have atimely filed extension of status can continue workingfor up to 240 days after the current I-94 expires (notpermitted for E-3s)
The M-274 handbook recommends that employers:– Write “240-Day Ext.” and enter the date they
submitted Form I-129 to USCIS in the margin ofForm I-9 next to Section 2
– Employers must reverify the employee’semployment authorization in Section 3 oncethey receive a decision on the H-1B petition, orby the end of the 240-day period, whichevercomes first
The foreign passport does not need to be validupon reverification
Portability and extensions – update Section 3 whenapproved
Maintaining a current passport is necessary forforeign nationals
FILLING OUT THE I-9 – EXTENSIONS OF H-1B, TN OR L-1WORKERS
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Reverification is needed whenever the work status of an alien who is authorizedto work will expire – on or before status expires (unless outside the US)
All reverification must be done on the latest version of the I-9 form
US citizens and LPRs never need reverification – unless the LPR presented onlyan I-551 stamp for evidence of work status
This section should also be used when a name change has occurred
See the M-274 handbook for the rules regarding rehires
If an EAD initially, then can present unrestricted SSN for reverification
FILLING OUT THE I-9 – REVERIFICATION
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Employees Requiring Reverification
Must always use latest version of I-9 Form
H-1B, TN, E Visa or other nonimmigrant status extensions
H-1B Portability: When the H-1B approval is received, reverification must becompleted
Employment Authorization Documents – valid for a few months to two years
Temporary green card holders must be reverified – presented an I-551 stampand a passport under List A – NOT if he/she presents a resident alien card
Permanent green card holders and US citizens never need to be reverified,unless they are being rehired
Name changes – marriage or other a best practice but not mandatory
Rehired employees – Section 3 on the latest I-9 edition
NEW I-9 FORM NEEDED FOR REVERIFICATION
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Correcting I-9s
Always use a different colored pen, draw a line through the error (if applicable),initial and date next to each change, never use white-out
Only the employee can correct Section 1 of the I-9
Any employee of the company can edit Section 2 of the I-9, as long as he/shecan reasonably attest to the information
All reverification needs to be done on the latest I-9 Form
If unsure how to correct an I-9, can complete a new I-9 and keep both forms
How To Use Agents For Remote Hires
Who completes Section 2? “Employer”
Can be an agent of the employer - - sister company, onsite customer, notarypublic, or any unrelated neutral 3rd party
M-274 confirms that the employer is “still liable for any violations in connectionwith the form or the verification process”
On the I-9 - e.g. Fred Smith, Agent of ABC company, and HQ address
HOW TO CORRECT AN I-9 AND USING AGENTS
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E-Verify Program
http://www.uscis.gov/e-verify
Sign the MOU and complete training
Complete training for the worksite and MUST use for every new employee –cannot use for previously hired employees
SSNVS
Social Security Number Verification System: SSNVS –http://www.ssa.gov/employer/ssnv.htm
Sample Letter – http://www.ssa.gov/employer/sampleltr.doc
Employers can verify the names and Social Security numbers of employeesonly after they are hired – can use for ANY employee
Only for payroll purposes and not for immigration status
VERIFYING WORK STATUS OF NEW/CURRENT EMPLOYEES
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E-Verify builds on top of the I-9 process – almost identical rules apply on I-9s
Running an E-Verify check is in addition to the Form I-9
“Backs” into DHS/SSA/DOS/CBP databases
Employee must have a social security number (normally voluntary), but can be hired andsubmit E-Verify later
Designed to ensure that the documentation presented is valid
Does not confirm that the documents presented are for that person
Must complete E-Verify within three days of hire (DHS is watching this); date of hire/paydictated by the certification box on the I-9
Not for current employees – government contractor rule is the exception – almost neverreverify an employee
Anti-discrimination rules apply and cannot fire for tentative nonconfirmation
Cannot use E-Verify or I-9s to screen new hires
Once enrolled must run all new hires through E-Verify for that worksite
View by many immigration attorneys as a best practice
If enter the wrong information, you can cancel the E-Verify request, and submit a new one
PURPOSE OF E-VERIFY AND HOW IT WORKS
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Discrimination
Most litigation in the I-9 arena had been where employers use the I-9 toexclude workers who are eligible for employment – national origindiscrimination
Employers are only required to review original documents for obviousforgeries, since most employers do not know what a bona fide documentlooks like; color copies of many acceptable documents – ICE Handbook
Requiring an employee to be a US citizen is usually discriminatory (twogeneral caveats)
Overdocumentation
Generally – if attach documentation for one then MUST do it for all; and canbe charged for asking for too much information
NEVER request specific documents from an employee – he/she must decidewhat can/will provide (TN, H-1B, E visa exception because sponsored)
FLIP SIDE OF I-9S AND CONFIRMING WORKAUTHORIZATION
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You Can Store I-9s Electronically – But
Need controls for the integrity, accuracy and reliability for the storage systemincluding
– Controls for preventing tampering or unauthorized access
– Accidental altering and/or deterioration of the stored I-9s
– Inspection and quality assurance procedures
– A retrieval system that includes indexing capabilities
– The ability to print paper copies
– Protect against information loss and to provide for backup
– Employees must be trained in the security system
– When reviewing I-9s, a permanent record must be created to identity ofthe person who accessed the record
Need to be able to document the entire system
Vetted 3rd party software provider the best option
ELECTRONIC STORAGE OF THE I-9
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Company compliance policy and training
Provide candidates with I-9 list of documents
Be consistent when attaching, or not attaching, copies of work documents
Online systems for creation and storage of I-9s
Destroy old I-9s of ex-employees – three years after date of hire or one yearafter employment ends – whichever is longer – use this chart –http://www.uscis.gov/i-9-central/retain-store-form-i-9/retaining-form-i-9
Audit early and often
E-Verify for new hires
SSNVS checks? “It can only be used to verify current or former employeesand only for wage reporting (Form W-2) purposes”
For internal audits, NEVER correct an I-9 without initialing and dating thechange – without this there could be a charge of document fraud; differentcolor pen preferred
I-9 Central - http://www.uscis.gov/I-9Central
I-9 BEST PRACTICES
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Penalties for I-9 Violations
Social Security ‘”no match” letters - IRS has the authority to impose a penaltyfor each incorrect return submitted to SSA, with an annual penalty of $50 perviolation, with a yearly maximum of $250,000.
I-9 paperwork violations – civil penalty of $110 to $1,100 per violation.
I-9 document abuse (asking for more documents than required) – civil penaltyof $375 to $3,200 per violation.
Knowingly hiring or continuing to employ a person not authorized to work inthe US – civil penalty of $275 to $2,200 per violation, for the first offense.
Knowingly engaging in a pattern or practice of hiring or continuing to employpersons unauthorized to work – criminal penalty of $3,200+ per violation andup to six months imprisonment.
Fine chart - http://www.ice.gov/news/library/factsheets/i9-inspection.htm
VIOLATIONS
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Many Agencies Are Increasing I-9 Capabilities
Every agency involved in the I-9 process has additional funding andresources dedicated to I-9 compliance (DHS, ICE, USCIS, DOL, and DOJ’sOSC)
– ICE is the enforcement arm of DHS, conducts employer audits and raids -five year plan confirms aggressive civil and criminal penalties againstemployers
– ICE developing “fusion centers”
– OSC is part of the US DOJ, and their focus is unlawful discrimination –http://www.justice.gov/crt/about/osc/htm/Webtypes2005.php
– Increased activity from DOJ’s OSC – more charges, fines, andsettlements against employers for discrimination
– DOL can conduct I-9 audits (but have not lately)
– USCIS is responsible for managing the I-9 form changes and immigrationstatus
GOVERNMENT INITIATIVES UNDER PRESIDENT OBAMA
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All signs point to continued push for E-Verify
State laws requiring E-Verify continue to expand
ICE raids down – but an increase in I-9 audits and employer civil/criminalpenalties
New employee self check option launched
OSC discrimination investigations on the rise
E-Verify starting to include state driver’s license information (RIDE)
No new immigration laws until a new President
OTHER UPDATES/REMINDERS
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General Rules:
Generally OK to visit DENSO offices for business meetings, Not OK to “work”without a work permit, when it comes to preforming “work,” need a work visa
ESTA Entries – Japan, Germany, UK, etc. – 90 days
B-1 Entries – India, China, Brazil, etc. – need a visa and six months
How much time in the US is too much? How long outside the US is enoughbefore the next entry?
OK to visit suppliers for meetings and sales pitches – no training permitted
OK to do “after sales service” for a machine under the original warranty
Not OK to do service on a machine on an extended warranty
Must show the P.O.
Preferred to have a DENSO U.S. letter of support
Avoid the word “training”
Clark Hill website - http://www.clarkhill.com/pages/visitor-visas
BUSINESS VISITORS TO THE US
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BUSINESS VISITORS TO CANADAGeneral Rules:
OK to visit customers for sales pitches
OK to visit customers for business meetings
Not OK to “work” without a work permit
US citizens – NAFTA
Germans and many others – GATT
Need customer to sponsor the work permit – but may be OK if paid from US
Sponsorship better when under a TN classification
Jobs not under NAFTA require a “labor market opinion” – to ensure there isn’ta Canadian who can do the job
At times, officers can be harder than we see for US entries
Be careful of the word “training”
OK to do “after sales service” for a machine under the original warranty
Extensive new work rules put into place in 2015/2016
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BUSINESS VISITORS TO MEXICOGeneral Rules:
Mexico eliminated work visas for person who work in the US for six months orless per year
No need for even a company letter
Over six months, then the old rules apply, need a work visa if working
Should be OK to apply to change status in Mexico
OK to work at a customer site as well without a work visa
Persons with US work visas seem to be OK as well (Germany, India, etc.)
But work visas (FM3) are only good for one year at a time
But if secure a work visa in Mexico, then need to be paid in Mexico
